Liberal Justices Embrace Originalism on Affirmative Action (1)

The Supreme Court’s liberal justices took a page out of the conservative playbook Monday, invoking history and “originalism” in defending the use of race in college admissions.

Embraced by conservatives, originalism is the idea that judges should look to what the law would have meant to those who passed it. Here, that means asking whether the civil-war era 14th Amendment allows universities to consider race when deciding what students to admit to their schools, or whether it demands that administrators take a colorblind approach.

Justice Elena Kagan noted during marathon arguments that there had been very little discussion from either side on what originalism suggests about whether affirmative action is constitutional.

“So I just want to ask, what would a committed originalist think about the kind of race-consciousness that’s at issue here?”

The justices heard a total of five hours of arguments in two cases challenging the admission practices at the University of North Carolina and Harvard College. Both schools were sued in companion lawsuits by the Students for Fair Admissions Inc., a membership organization that includes students who were rejected by both schools.

Liberal Pivot

Liberal justices and advocates are increasingly pivoting to originalism in an effort to maintain progressive policies in a court dominated by conservatives. The conservative justices repeatedly turned to history last term to justify decisions that overturned the constitutional right to abortion, expanded gun rights, and blurred the lines between church and state.

US Solicitor General Elizabeth Prelogar said affirmative action programs are “clearly consistent with the original understanding of the Fourteenth Amendment,” noting that there is “powerful evidence” that at the time the amendment was enacted, there were race-conscious laws, both at the state and federal level, intended to benefit former slaves.

Patrick Strawbridge, counsel for Students for Fair Admissions who argued the UNC case, pointed to the government’s own brief in the landmark Brown v. Board of Education case, outlawing separate but equal public education. There, the US argued that distinctions on the basis of race or color were strictly prohibited.

“That is our position,” Strawbridge said. “That was the position in Brown. It’s the position that prevails today.”

In the Harvard argument, Justice Neil Gorsuch noted too that the drafters of the 14th Amendment “were especially concerned about racial classifications at the state level because so many of them, everyone knew, would be used as Jim Crow laws were to discriminate against African Americans.”

Justice Ketanji Brown Jackson, who nodded to the original meaning of the Fourteenth Amendment in a voting rights case last month, said that even if the history was unclear, the student group challenging affirmative action would have to clear a high bar to convince the court to overrule prior precedent.

Jackson participated in the UNC arguments but recused herself from the Harvard case because of her ties to the university.